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Goodall Vs. the Mussoorie Bank, Limited, and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1888)ILR10All97
AppellantGoodall
RespondentThe Mussoorie Bank, Limited, and anr.
Excerpt:
assignment of interest pending suit - assignment after decree in court of first instance--assignee made a party after appellate decree for purposes of execution--civil procedure code, sections 372, 647. - - ' what the meaning of the words 'pending the suit' is to my mind perfectly clear, namely, during the progress of the suit and before the passing of the decree, and in that interpretation i am borne out by the observations of pontifex, j......far as it can be made applicable' in all proceedings in any court of civil jurisdiction other than suits and appeal. but it is impossible to my mind to make section 372 applicable to execution proceedings, because by its own language it negatives any such applicability to execution proceedings. the words used there are 'assignment, &c;, pending the suit.' what the meaning of the words 'pending the suit' is to my mind perfectly clear, namely, during the progress of the suit and before the passing of the decree, and in that interpretation i am borne out by the observations of pontifex, j., in gocool chander gossamee v. the administrator-general of bengal i. l. r., 5 cal., 726. moreover, in reference to a somewhat analogous rule under the judicature act i find a decision of jessel, m. r.,.....
Judgment:

Straight, J.

1. Confine yourself to your sixth ground of appeal. I do not see what jurisdiction the Subordinate Judge had to make the order of the 25th November 1884, making the appellant a party to the suit after decree.

2. There was no jurisdiction to make such an order: Attorney-General v. Corporation of Birmingham, L. R., 15 Ch. D. 423; Gocool Chunder Gossamee v. The Administrator-General of Bengal I. L. R., 5 Cal., 726; 5 Cal., L. R. 108, per Pontifex, J. See Order XVII, Rules 1 and 3 under the Judicature Act, Rules of 1883. The appellant did not purchase 'pending the suit'.

3. The other side will rely on Section 647 of the Code, but that section does not mean that the procedure in suits before decree is to be applied indiscriminately after decree. It was intended to provide a procedure for miscellaneous matters, such as probate, similar to that of suits: Amir Hasan v. Ahmad Ali I. L. R., 9 All, 36; Naigappa v. Gangawa, I.L.R., 10 Bom., 433; In the matter of the petition of Jodoo Monee Dossee, 11 W. R. 494. The only way in which Section 647 could have been applied was to make the appellant a party while the appeal was pending before Her Majesty in Council by application to the Judicial Committee, or, if the appellant had purchased during the proceedings in, execution of the Privy Council decree, those proceedings might have been treated as analogous to a suit. Further, the proper person, if any, to be made a party under Section 372 was not Goodall, but his transferee. At the time when the order of the 25th November 1884 was passed, the appellant had parted with all his interest in the shares. [He was stopped.]

4. Mr. J. E. Howard, for the Respondent (the Mussoorie Bank). This plea is too late. The order of the 25th November 1884, as pointed out by Tyrrell, J., might have been appealed under Section 588 (21) of the Code. No appeal having been preferred, the order has become final and cannot now be questioned.

5. Mr. A. Strachey, for the Appellant, in reply. The order of the 25th November 1884 was of an interlocutory character, and the order now under appeal is in the nature of a final decree--Section 2 of the Code--in appeal from which all interlocutory orders, appealable or otherwise, may be objected to: Civil; Procedure Code, Section 591, Har Narain Singh v. Kharag Singh I. L. R., 9 All. at p. 451, Googlee Sahoo v. Premlall Sahoo I. L. R., 7 Cal., 148. The objection goes to the jurisdiction of the Subordinate Judge to make the order now under appeal, and it may be made at any time.

Straight, J.

6. This is an appeal from an order passed by the Subordinate-Judge of Dehra Dun on the 28th February 1887. That order professes to be passed in execution of a Privy Council decree dated the 21st March 1882, and I may, for the purpose of making it quite intelligible why I have adopted the view of this case that I have, state a few dates and facts. Some time prior to August 1878, a gentleman of the name of Raynor brought a suit against the Mussoorie Bank in respect of an attachment that had been made of twenty-four shares in the London and Delhi Bank. That suit was instituted in the Court of the Subordinate Judge of Dehra Dun, and it was ultimately dismissed by that Court. Then an appeal was preferred to this Court, and Sir Robert Stuart, Chief Justice, and Pearson, J., who heard that appeal, reversed the decision of the Subordinate Judge, and decreed the plaintiff's suit on the 22nd August 1878.

7. The Bank then applied to the two learned Judges of this Court who had heard the appeal for leave to appeal from their decree to their Lordships of the Privy Council, and on the 13th January 1879 that application was refused. The Bench incidentally observed, I suppose for the purpose of affording information to the parties, that it was open to them to go direct to their Lordships of the Privy Council and obtain special leave. That course was adopted by the Mussoorie Bank, and on the 14th August 1879, they obtained such leave from their Lordships of the Privy Council, and their appeal was admitted. Between the date when this Court refused leave and the date when special leave was granted by the Privy Council, twelve out of the twenty-four shares in the London and Delhi Bank which were the subject-matter of the action were transferred by Raynor to Mr. Goodall, the appellant before us. Whether that was a transfer pendente lite is a matter about which I am not called upon to express any opinion, and I express none, though upon further consideration since yesterday, and in order to correct any erroneous impression that may have been gathered from some remarks made by me, I am by no means clear that the doctrine of lis pendens will apply to the circumstances of this case. The Privy Council order decreeing the appeal and dismissing the suit was made on the 21st March 1882, and in the ordinary course it was forwarded to this Court for transmission to the Court of the Subordinate Judge of Dehra Dun for execution. On the 24th July 1882 an application for execution was made, and among the matters asked by the decree-holder was that the Court would cause the shares unduly realized by Raynor in execution of the High Court's decree to be restored. Upon that application an order was made by the Subordinate Judge directing Raynor to produce the shares, and he failing to do so, an order was made for his arrest, and, as I understand it, he was arrested. From that time until the month of March 1884, no further steps seem to have been actively taken for the purpose of executing the decree; but on the 3rd March 1884 the Bank filed a petition in the Court of the Subordinate Judge, praying that Goodall, the appellant before us, might be brought on as the representative of Raynor. On the 1st April 1884, the Court issued a notice to Goodall, the terms of which are most significant, and they in substance were as follows, namely, that Goodall was to show cause why he should not be called upon to restore the shares. Now that was the notice to Goodall, and was the only intimation he ever received from the Court of the Subordinate Judge as to what was required from him, and yet upon a notice of that kind, and in reference to a certain affidavit which Goodall sent from England to the Court of the Subordinate Judge, that Court, on the 25th November 1884, made Goodall a party to the decree in the character of a judgment-debtor. Having put him on the record in that character and after certain proceedings had been held, the Subordinate Judge subsequently passed the order of which complaint is now made on the 28th February 1887, by which, treating Goodall as a judgment-debtor and as a person amenable to the execution of the decree, he directed him either to hand over the shares or to pay their equivalent, and went on to order that, in default of doing so, under the provisions of Section 259, certain property belonging to him would be sold to satisfy the decree.

8. At the commencement of the argument yesterday, which was so concisely put before us by Mr. Strachey for the appellant, I suggested to him the propriety of confining himself to the single question of the jurisdiction of the Subordinate. Judge to pass such an order by reason of his want of jurisdiction to have passed the order of the 25th November 1884, making Goodall a party to the decree. That is the only question that has been discussed, that is the only question which I propose to decide, and, as I am in favour of the appellant upon that point, his appeal will succeed and the order of the Judge will be set aside.

9. Before, however, closing the remarks I have to make in regard to this case, I desire to point out why it is that I think the order of the Judge is without jurisdiction. Mr. Howard for the respondent yesterday suggested that as the order of the 25th November 1884, had not been appealed as it might have been, it had, by reason of the absence of any such appeal, become final, and it was not open to Mr. Strachey in the present proceeding to question the jurisdiction of the Subordinate Judge to make either that order or any other order passed in regard to Goodall, who by that order had been joined as a judgment-debtor.

10. I dissent from that contention of Mr. Howard, and I have no hesitation in holding that in an appeal of the kind before me, where the objection goes to the very root of the matter and to the authority of the Court to make the order in the sense that it had no jurisdiction at all, I am entitled to entertain it, and if it has force, to give effect to it. In my opinion the Subordinate Judge had no power under the law to bring in a party after the decree and make him a judgment-debtor for the purpose of applying the provisions applicable to the execution of the decree. It is said that taking Section 647 of the Code and reading it in conjunction with Section 372, it is competent for a Court executing a decree to do on the execution side what a Court on the original side may do under the latter section; that is to say, it may, after decree, bring in any person who by assignment, creation, or devolution of any interest pending the suit, has become interested in the subject-matter thereof. It is noticeable that Section 647 is specific in its terms. It says that the procedure herein prescribed shall be followed 'as far as it can be made applicable' in all proceedings in any Court of civil jurisdiction other than suits and appeal. But it is impossible to my mind to make Section 372 applicable to execution proceedings, because by its own language it negatives any such applicability to execution proceedings. The words used there are 'assignment, &c;, pending the suit.' What the meaning of the words 'pending the suit' is to my mind perfectly clear, namely, during the progress of the suit and before the passing of the decree, and in that interpretation I am borne out by the observations of Pontifex, J., in Gocool Chander Gossamee v. The Administrator-General of Bengal I. L. R., 5 Cal., 726. Moreover, in reference to a somewhat analogous rule under the Judicature Act I find a decision of Jessel, M. R., concurred in by James and Brett, L., JJ., in Attorney-General v. Corporation of Birmingham, L. R., 15 Ch. D., 423, where Jessel, M. E., remarks: 'A statement of claim or bill cannot be amended after final judgment. If it becomes necessary to enforce that judgment against persons who have acquired a title after it was made, an action must be brought for that purpose.'

11. Here it is to be observed that in the wording of Section 372 the language is almost identical with the rule cited by Jessel, M. R., and it shows what is t& be done in reference to the continuing of a suit, i. e., a trial of a case when the subject-matter with which the suit is concerned has passed away to another person. It is not pretended here that Goodall acquired any interest prior to the date of the decree; on the contrary, it was subsequent to the decree that he acquired such interest [see Raynor v. The Mussoorie Bank I. L. R., 7 All., 681. That being so, I am of opinion that Sections 372 and 647 had no application to the case; that Goodall was improperly made a judgment-debtor, and so improperly being made a judgment-debtor, the provisions of Section 259, which are sought to be enforced against him, are in no way applicable. The result is that the appeal is decreed with costs, quoad the Mussoorie Bank, and the order of the Subordinate Judge set aside. As to the respondent Raynor it is by consent dismissed with costs. Raynor had been cited as a respondent through some mistake. He was represented by Mr. G. E. A. Ross.

Brodhurst, J.

12. I concur.


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